Andrew Keshner, Expungement Is Denied, but Court Offers Novel Relief, New York Law Journal (Mar. 14, 2016) (may require log in).
Virtually unnoticed, on February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.
The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics assert that there has been no connection established between people on sex registries and international sex trafficking; that the branding passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in traveling, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.
A personal observation: Is there no limit to the US urge to stigmatize and punish the other? Is the urge to punish and stigmatize really justified by the desire to help prevent sex crimes in other countries? Shouldn’t that be done by the legislatures of other countries, who might want to restrict the entry of various people and are fully capable of doing so? Reciprocal international efforts to limit sex trafficking are legitimate, but this Act is overbroad, unhealthy, and probably unconstitutional.
- David Post, The Yellow Star, the Scarlet Letter, and ‘International Megan’s Law’, The Washington Post (Jan. 6, 2016).
- Press Release, Congresswoman Ann Wagner, Wagner Speaks in Support of International Megan’s Law (Feb. 1, 2016).
- Press Release, Florida Action Committee, Lawsuit Filed Against International Megan’s Law (Feb. 9, 2016).
- International Megan’s Law, H.R. 515, 114th Cong. (2016) (summary for H.R. 515).
- Obama Signs Controversial Legislation Designed to Prevent Sex Tourism, NYTLive (Feb. 9, 2016).
- Doe v. Kerry et al., No. 3:16-cv-00654 (N.D. Cal. Feb. 9, 2016) (complaint).
- Lissa Griffin & Kate Blacker, Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom, 46 Crim. L. Bull. 987 (2010) (SSRN).
POST WRITTEN BY: John Humbach, Professor of Law at Pace Law School.
Much has been written about the extraordinary rates of incarceration as a pressing criminal justice problem. Mass incarceration is, however, only part of the challenge posed by the American criminal justice system. Already, an estimated 25% of U.S. adults have a criminal record and, with a million new felony convictions per year—one every 30 seconds—America’s ex-offender population is growing exponentially (see chart to the right). Our country is well on its way to becoming a nation of ex-cons.
The effects of being a “criminal” do not, moreover, end with release from prison. Newly released inmates are immediately met by a growing assortment of law-prescribed “collateral consequences” that now number in the tens of thousands. In their cumulative impact, these legal disabilities greatly reduce the ability of ex-offenders to find housing, make a living, get an education, obtain bank loans, support their children or, generally, to enjoy the usual rights and amenities of citizenship that are essential for a reasonable quality of life. As a result, our nation’s criminal-justice policy is literally re-making America into a legally divided multi-stratum society with an entrenched system of law-sanctioned discrimination against a large and growing underclass with a legally-prescribed inferior civic status.
Already, the ex-offender class is the nation’s largest legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain. But whatever the details, this is surely not good path for the nation to be on.
- Sarah Shannon, et al., Growth in the U.S. Ex-Felons and Ex-Prisoner Population, 1948-2010, Figure 4 – Growth of Felons and Ex-Felons, 1948-2010 (unpublished manuscript).
The American Bar Association has published its Fourth Edition of the ABA Criminal Justice Standards for the Prosecution and Defense Functions, adopted by a resolution 107D in February 2015. This edition supplants the Third Edition (1993) of the ABA Standards for Criminal Justice: Prosecution Function and Defense Function. Among the new provisions are the following:
For the Prosecution
- Standard 3-1.3 – The Client of the Prosecutor – explicitly stating that a victim is not a prosecutor’s client.
- Standard 3-3.6 – When Physical Evidence with Incriminating Implications is Disclosed by the Defense – stating that “[w]hen physical evidence is delivered to the prosecutor consistent with defense function standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client.”
- Standard 3-4.3 – Minimum Requirements for Filing and Maintaining Criminal Charges – stating in subsection (d) that “[a] prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.”
- Standard 3-5.c – The Decision to Recommend Release or Seek Detention – recommending that prosecutor should favor pretrial release over detention unless detention is necessary to protect individuals or the community. Additionally, prosecutor should remain open to reconsideration of pretrial detention.
- Standard 3-5.8 – Waiver of Rights as Condition of Disposition Agreements – requiring a prosecutor not to condition a disposition agreement on a waiver of the right to appeal the terms of a sentence, on any waiver of post-conviction claims, or a complete waiver of the right to file habeas corpus petition, fully incorporating the DOJ policy banning waiver of ineffective counsel claim as a condition to guilty plea, as discussed here.
- Standards in Part VIII Relating to Appeals and Other Conviction Challenges
- Standard 3-8.1 – Duty to Defend Conviction Not Absolute – requiring prosecutor to exercise one’s own independent professional judgment and discretion and thus allowing the prosecutor to decline prosecution if she “believes the defendant is innocent or was wrongfully convicted, ….”
- Standard 3-8.3 – Responses to New or Newly Discovered Evidence or Law – placing emphasis on seeking justice by requiring prosecutors offices to develop policies and procedures to address situations in which the prosecutor learned of credible evidence ‘creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, ….”
- Standard 3-8.4 – Challenges to the Effectiveness of Defense Counsel – requiring the prosecutor to intervene if he observes that defense counsel may be ineffective.
- Standard 3-8.5 – Collateral Attacks on Conviction
For Defense Counsel
- Standard 4-2.3 – Right to Counsel at First and Subsequent Judicial Appearances – stating that “[a] defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”
- Standard 4-5.4 – Consideration of Collateral Consequences – placing a requirement on the defense counsel to “identify and advise the client of collateral consequences that may arise from charge, plea or conviction.”
- Standard 4-5.5 – Special Attention to Immigration Status and Consequences – taking standard 4-5.4 one step further by incorporating the decision of Padilla v. Kentucky, 559 U.S. 356 (2010) (slip opinion copy) (requiring defense counsel to advise his client of potential immigration consequences as a result of guilty plea).
- Standard 4-9.4 – New or Newly-Discovered Law or Evidence of Innocence or Wrongful Conviction or Sentence – placing a duty on the defense counsel to act if she “becomes aware of credible and material evidence or law creating a reasonable likelihood that a client or former client was wrongfully convicted or sentenced or was actually innocent.”
BY: Lissa Griffin & Lucie Olejnikova
As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.
The ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.
- Frank Thurston Green, Certificate Confusion Puts Focus on Convictions’ Consequences, City Limits.org (Feb. 17 2015) (certificate of relief program).
- Rachel Black & Aleta Sprague, Give the Unemployed Second Chance, CNN (Feb. 4, 2015).
- K. Reiter, J. Selbin & E. Hersh, Op-Ed, Should a Shoplifting Conviction be an Indelible Scarlet Letter? Not in California, LA Times (Dec. 28 2014).
- Gary Fields & John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, Wall Street Journal (Dec 25, 2014).
- Monica Haymond, Should a Criminal Record Come with Collateral Consequences?, NPR (Dec. 6, 2014).
- Editorial Board, In Search of Second Chances, The New York Times (May 31, 2014).
- Sarah B. Berson, Beyond the Sentence – Understanding Collateral Consequences, National Institute of Justice – Office of Justice Programs (May 2013).
- Owen Bowcott, New Law Means Job Applicants Cannot Be Forced to Reveal Spent Convictions, The Guardian UK (Mar. 10, 2015).
- National HIRE Network Newsletter, Relief from the Collateral Consequences of Convictions (Nov. 2005 – May 2006).
- Lisa Hale Rose, Community College Students with Criminal Justice Histories and Human Services Education: Glass Ceiling, Brick Wall or a Pathway to Success, 39 Community C. J. Res. & Prac. 584 (2015) (suggesting that students with criminal records at community colleges intending to pursue human services education may face obstructed pathways).
- Heather R. Hlavka, Darren Wheelock & Jennifer E. Cossyleon, Narratives of Commitment: Looking for Work with a Criminal Record, The Soc. Q. (Jan. 23, 2015) (unemployment being the most cited barrier to reentry).
- Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014) (available at HeinOnline).
- Erin L. Bauer et al., Evaluation of the New York City Justice Corps: Final Outcome Report, (July 2014) (evaluation report of the community based programs aimed to help juveniles to reenter).